* District Judge of the Eastern District of Louisiana, sitting

by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-11356

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Plaintiff-Appellee,

versus

EXXON CORPORATION,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

February 11, 2000

Before HIGGINBO THAM and SMITH, Circuit Judges, and DUPLANTIER,

District Judge. *

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In this appeal under the Americans with Disabilities Act

(“ADA ”), we review the measure of a safety-based qualification

standard defended as a business necessity. The EEOC moved for

partial summary judgment arguing that the only defense available

under the ADA when an employer imposes a safety qualification

standard is for the employer to prove that the individual poses a

“dire ct threat.” The district court granted the motion. We are2

not persuaded by the position of the EEOC and accepted by the

district court. Rather, we find that applying direct threat only

in cases in which the employer imposes a special safety standard in

an individual case offers a more coherent meaning of the statute

and of the role of safety under it. We REVERSE.

I

The EEOC brought this suit on behalf of certain Exxon

employees, alle ging that Exxon’s substance abuse policy violates

the ADA. The policy permanently removes any employee who has

undergone treatment for substance abuse from certain safetysensitive, little-supervised positions. The policy affects about

ten percent of Exxon’s positions. Exxon adopted the policy in

r esponse to the 1989 Exxon Valdez incident, in which one of its

tankers ran aground, causing environmental injury and resulting in

billions of dollars of liability for Exxon. Concerns arose that

the tanker’s chief officer’s alcoholism, which had previously been

treated, might have contributed to the accident.

The EEOC claims that pursuant to the policy, Exxon demoted

employees who underwent treatment several decades ago. Exxon

justifies its policy as promoting safety in jobs i n which it is

unable to oversee employees to ensure they are not relapsing into

substance abuse, as well as furthering environmental protection,

the preve ntion of future tort liability, and good corporate

citizenship. Before trial, the EEOC moved for partial summary1 Whether the employees on whose behalf the EEOC is suing are

“disabled” within the meaning of the ADA is not before us.

3 judgment on the grounds that Exxon must defend its policy under the

“direct threat” provision of the ADA. The magistrate judge

recommended summary judgment for the EEOC, and the district court

adopted that recommendation but acknowledged the difficulty and

certified the issue for ap peal. We granted leave to Exxon to

appeal the interlocutory order under 28 U.S.C. § 1292(b).

II

The ADA prohibits an employer from using qualification

standards that screen out a disabled individual or class. See 42

U.S.C. § 12112(b)(6) (1999). An employer may raise certain

affirmative defenses to such a charge. 1 The relevant portions of

the statute’s “Defenses” provision read:

(a) In general

It may be a defense to a charge of discrimination under

this chapter that an alleged application of qualification

standards

. . . that screen out or tend to screen out or

otherwise deny a job or benefit to an individual with a

disability has been shown to be job -related and

consistent with business necessity. . . .

(b) Qualification standards

The term “qualification standards” may include a

requirement that an individual shall not pose a direct

threat to the health or safety of other individual s in

the workplace.

§ 12113. Safety-based qualification standards are an accepted

ground for a defense; the question before us is whether an employer

may defend the questioned personnel decision as based on a standard2 Exxon also cites its concern for the environment as a ground

for the policy. We find this justification subsumed in the safety

motivation. Exxon further claims that tort liability should be a

separa te basis for a business necessity defense. Exxon faced

massive tort liability as a result of the Valdez spill and claims

that should anothe r incident occur, it would be subject to

heightened damages, including punitive and criminal sanctions. In

International Un ion v. Johnson Controls, Inc. , the Supreme Court

noted that tort liability might be a valid defense if the added

costs would threaten the survival of the employer’s business. 499

U.S. 187, 210-11 (1991).

4 justified as a business necessity or must demonstrate a “direct

threat” in each circumstance. 2

Exxon contends that becau se the statute does not explicitly

mandate the direct threat test for every safety-based qualification

standard, it may defend its policy under either section of the

provision. The EEOC argues that the direct threat test must be

used in every case where a safety-based requirement is at issue.

The EEOC has issued Interpretive Guidance, which generally requires

employers to meet the direct threat test:

Wit h regard to safety requirements that screen out or

tend to screen out an individual with a disability or a

class of individuals with disabilities, an employer must

demonstrate tha t the requirement, as applied to the

individual, satisfies the “direct threat” standard in

§ 1630.2(r) in order to show that the requirement is jobrelated and consistent with business necessity.

29 C.F.R. pt. 1630, App. § 1630.1 5(b) & (c). This language, not

being part of the regulation, is not entitled to Chevron deference.

Rather , we will give it due deference to the extent it is

reasonable and harmonizes with the plain language of the statute,

its origi n and purposes. C f. Fort Hood Barbers Ass’n v. Herman

,5

137 F.3d 302, 307 (5th Cir. 1998) (construing deference appropriate

for an interpretive regulation).

Our review begins with the language of the provision itself.

Two aspects of the provision indicate that safety requirements are

not exclusively cabined into the direct thr eat test. First,

§ 12113(a) speaks of qualification standards that “screen out or

tend to screen out an individual.” This language suggests a

general standard applicable to all employees. In contrast, the

direct threat provision of § 12113(b), phrased in the permissive,

allows a requirement that the individual not pose a threat to

health or safety. The different approaches suggest that business

necessity app lies to across-the-board rules, while direct threat

addresses a standard imposed on a particular individual.

This reading is confirmed by the lang uage in § 12113(b)

stating that the individual shall not pose a direct threat to

“others in the workplace.” This language appears odd, if we are to

accept the EEOC’s interpretation that all safety-related

qualification standards are addressed by this provision. Many

employees who pose safety risks, such as a driver unqualified to

transport hazardous substances, would not pose a particular threat

to others in their workplaces.

The origi n of the workplace language sheds light on what

problem § 12113(b) seeks to remedy. The direct threat provision

derives from School Board of Nassau County v. Arline

, 480 U.S. 273

(1987), in which the Supreme Court construed the ADA’s predecessor6

Rehabilitation Act. S ee H.R. R EP

. N O

. 101-485(II), at 56-57 (1990),

reprinted in 1990 U.S.C.C.A.N. 303, 338-39. In A rline

, the

plaintiff, a teacher batt ling tuberculosis, was fired after

concerns arose that her students would become infected. The

teacher met all of the established qualification standards relating

to the performance of her job. The Court held that the plaintiff

was not qualified for her position because of her illness only if

she posed a significant risk to others in the workplace. S ee

Arline , 480 U.S. at 276, 284, 287.

Whe n Congress codified A rline in the ADA, it kept the

workplace language but expanded coverage to individuals with

disabil ities other than contagious illnesses. The legislative

history’s examples of direct threat, however

-- contagious

illnesses, mental disabilities, a nd mental illnesses -- continue

the focus on situations in which an employer might impose a safety

standard in an individual’s particular case separate from the

gene ral qualification standards required for the position. S ee

H.R. R EP

. N O

. 101-485( III), at 45 (1990), r eprinted in 1990

U.S.C.C.A.N. 445, 468-69 & n.37.

Neither the statute, the legislative history, nor A rline

discuss es the distinct situation in which a pre-existing safetybased qualification standard applies across-the-board for the

position, such as a requirement that a bus driver meet certain

sight requirements. Such requirements arise in safety-sensitive

jobs such as driving or working with hazardous substances. S ee,7

e.g.

, Albertsons, Inc. v. Kirkingburg

, 1999 WL 407456, at *1 (U.S.

1999) (company imposed vision requirements on truck drivers). In

cases where an employer has developed a general safety requirement

for a positi on, safety is a qualification standard no different

from other requirements defended under the ADA’s business necessity

provision. S ee 29 C.F.R. § 1630.2(q). Physical requirements, for

example, such as lifting, walking or seeing, are acceptable

defenses as long as the requirements are job-related and consistent

with business necessity. See 29 C.F.R. pt. 1630, App. § 1630.10.

Requirements that may be valid as a business necessity must be

“established” by the employer to be eligible for the position. S ee

29 C.F.R. § 1630.2(q).

Similarly, the business necessity defense under Title VII and

the ADEA has applied to safety-based qualification standards which

tend to screen out women or certain age groups. S ee Smith v. City

of Des Moines

, 99 F.3d 1466, 1471 (8th Cir. 1996) (applying

business necessity standard in an ADEA suit regarding safety

standards for firefighters); L evin v. Delta Air Lines, Inc.

, 730

F.2d 994, 997 (5th Cir. 1984) (applying business necessity in a

Title VII challenge to safety requirements affecting pregnant

women). In these areas of employment discrimination law, the

strength of the defense again turns on whether the employer can

justify the safety standard as a general rule. S ee Smith

, 99 F.3d

at 1472-73 (examining validity of qualification stand ard rather3 The Supreme Court also recently questioned the EEOC’s claim

for exclusive use of the direct threat standard. In dicta in

Albertsons, Inc. v. Ki rkingburg , Justice Souter questioned the

soundness of the EEOC’s positi on requiring a showing of “direct

threat” to justify a safety-related qualification standard. 1999

WL 407456, at *7 n.15 (U.S. 1999). At issue in A lbertsons was a

truck driver with monocular vision who failed his employer’s vision

standards. The EEOC argued that the employer would have to proceed

under the direct threat standard. The Court, however, decided the

case on other grounds. See Albertsons , 1999 WL at *1, *7.

8 than experts’ opinions as to plaintiff’ s general fitness for

position).

While no court has as yet addressed the question we answer

today, several trends in ADA case law indicate that the direct

threat test is not deployed where an employer uses a general

safety-based qualification standard applicable across-the-board. 3

See, e.g. , Jeffrey A. Van Detta, “‘Typhoid Mary’ Meets the ADA: A

Case Study of the ‘Direct Threat’ Standard Under the Americans With

Disabilities Act,” 22 H ARV

. J.L. P UB

. P OL ’ Y 849, 935 (1999) (noting

tendency of courts to ignore Arline in cases relating to

transportation jobs). Several cases have held that an employee is

“not qualified,” without discussing direct threat, if the employee

cannot meet an establ ished safety requirement for the position.

See, e.g.

, Jones v. Kerrville State Hosp.

, 142 F.3d 263, 265-66

(5th Cir. 1998) (holding that nurse who was unable to complete

training on safe subduing of patients was not qualified); Newman v.

Chevron U.S.A.

, 979 F. Supp. 1085, 1090-91 (S.D. Tex. 1997)

(gasoline truck driver with post traumatic stress disorder not

qualified). Because the “otherwise qualified” analysis and the9

business necessity defense each involves whether the individual can

perform the “essential functions” of the job, see 42 U.S.C. §

12111(8); 29 C.F.R. pt. 1630, App. § 1630.10, these courts’

approach mirrors the business necessity standard.

We have found nothing in the statutory language, legislative

history or case law that persuades that the direct threat provision

addresses safety-based qualification standards in cases whe re an

employer has developed a standard applicable to all employees of a

given class. We hold that an employer need not proceed under the

direct threat provision of § 12113(b) in such cases but rather may

defend the standard as a business necessity. The direct threat

test applies in cases in which an employer responds to an

individual employee’s supposed risk that is not addressed by an

existing qualification standard.

In so holding, we note that direct threat and business

necessity do not present hurdles that comparatively are inevitably

higher or lower but rather require different types of proof.

Direct threat focuses on the individual employe e, examining the

specific risk posed by the employee’s disability. S ee 29 C.F.R. §

1630.2(r). In contrast, business necessity addresses whether the

qualification standard can be j ustified as an across-the-board

requirement. Either way, the proofs will ensure that the risks are

real and not the product of stereotypical assumptions.

In evalua ting whether the risks addressed by a safety-based

qualification standard constitute a business necessity, the court10

should take into account the magnitude of possible harm as well as

the probability of occurrence. The acceptable probability of an

incident will vary with the potential hazard posed by the

particular position: a probability that might be tolerable in an

ordinary job might be intolerable for a position involving atomic

reactors, for example. In short, the probability of the occurrence

is discounted by the magnitude of its consequences. In Exxon’s

case, the court should thus consider the magnitude of a failure in

assessing whether the rate of recidivism among recovering substance

abusers constitutes a safety risk sufficient for busin ess

necessity.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.